2. The appellant pay the first respondent's costs.
Matter No S185/2017
1. Appeal dismissed.
2. The appellant pay the first respondent's costs.
Matter No S186/2017
1. Appeal dismissed.
2. The appellant pay the second respondent's costs.
Matter No S187/2017
1. Appeal dismissed.
2. The appellant pay the second respondent's costs.
Matter No S188/2017
1. Appeal dismissed.
2. The appellant pay the second respondent's costs.
On appeal from the Supreme Court of New South Wales
Representation
M G Sexton SC, Solicitor-General for the State of New South Wales and K M Richardson SC with M O Pulsford for the Attorney General for New South Wales and for the State of New South Wales (instructed by Crown Solicitor's Office (NSW))
K T Nomchong SC with K L Madgwick for Garry Burns in matters S183/2017 and S186/2017 and with H E Jewell for Garry Burns in matters S185/2017, S187/2017 and S188/2017 (instructed by Allens in S183/2017 and S186/2017, Lander & Rogers Lawyers in S185/2017 and S188/2017, and Dowson Turco Lawyers in S187/2017)
S P Donaghue QC, Solicitor-General of the Commonwealth and C L Lenehan with J Freidgeim for the Attorney-General of the Commonwealth (instructed by the Australian Government Solicitor)
P E King with J A Loxton for Tess Corbett (instructed by Robert Balzola and Associates)
P E King for Bernard Gaynor (instructed by Robert Balzola and Associates)
Submitting appearance for Civil and Administrative Tribunal of New South Wales in S185/2017, S187/2017 and S188/2017
Interveners
P J Dunning QC, Solicitor-General of the State of Queensland, with F J Nagorcka for the Attorney-General of the State of Queensland intervening (instructed by Crown Solicitor (Qld))
P D Quinlan SC, Solicitor-General for the State of Western Australia, with C I Taggart for the Attorney-General for the State of Western Australia intervening (instructed by State Solicitor (WA))
M E O'Farrell SC, Solicitor-General for the State of Tasmania, with S K Kay, for the Attorney-General of the State of Tasmania intervening (instructed by Solicitor-General of Tasmania)
K L Walker QC, Solicitor-General for the State of Victoria, with K E Foley for the Attorney-General for the State of Victoria intervening (instructed by Victorian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Burns v Corbett [2018] HCA 15
Case
[2018] HCA 15
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals concerning the jurisdiction of the New South Wales Civil and Administrative Tribunal (NCAT) to hear disputes where the parties were residents of different States. The core of the dispute involved complaints made under the *Anti-Discrimination Act 1977* (NSW), with the parties agreeing that NCAT exercised State judicial power but was not a "court of a State" for the purposes of Chapter III of the Constitution.
The legal issues before the Court were twofold. First, whether Chapter III of the Constitution contains an implied prohibition preventing any party to the federal compact from conferring adjudicative authority on an organ of government, whether federal or State, other than a court referred to in Chapter III, in respect of matters listed in sections 75 and 76 of the Constitution. Second, whether the *Civil and Administrative Tribunal Act 2013* (NSW) was inconsistent with Commonwealth law, specifically section 39(2) of the *Judiciary Act 1903* (Cth), by purporting to confer jurisdiction on NCAT to determine disputes between residents of different States.
The Court reasoned that while State Parliaments retain the power to confer State judicial power on State tribunals that are not courts, this power is limited with respect to matters falling within sections 75 and 76 of the Constitution. The Court affirmed the distinction between courts and administrative tribunals established in *Boilermakers' Case*, clarifying that this distinction is vital for the purposes of Chapter III. The Court held that sections 28(2)(a) and (c), 29(1), and 32 of the *NCAT Act* were invalid to the extent they purported to confer jurisdiction on NCAT in relation to disputes between residents of different States, as this would infringe upon the exclusive federal jurisdiction contemplated by section 75(iv) of the Constitution. However, these provisions could be read down to avoid this constitutional invalidity.
Consequently, the appeals were dismissed. The appellant was ordered to pay the costs of the respondents in each of the consolidated matters.
Orders
Orders of the court
Matter No S183/2017
1. Appeal dismissed.
2. The appellant pay the first respondent's costs.
Matter No S185/2017
1. Appeal dismissed.
2. The appellant pay the first respondent's costs.
Matter No S186/2017
1. Appeal dismissed.
2. The appellant pay the second respondent's costs.
Matter No S187/2017
1. Appeal dismissed.
2. The appellant pay the second respondent's costs.
Matter No S188/2017
1. Appeal dismissed.
2. The appellant pay the second respondent's costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL AND KEANE JJ
GAGELER J
(dissent)
In any event, the existence of State administrative bodies exercising judicial power at the time of Federation cannot be decisive of the true operation of Ch III. As noted earlier, until this Court's decision in the Boilermakers' Case, it was commonly, but erroneously, understood that an administrative body, such as the Inter‑State Commission or the Commonwealth Court of Conciliation and Arbitration, was capable of exercising the judicial power of the Commonwealth. The decision in the Boilermakers' Case established that the adjudicative authority of the Commonwealth was exercisable only by the courts of the federal Judicature; that being so, it became of vital importance to observe the difference between such courts and administrative tribunals for the purposes of Ch III[66]. True it is that neither the decision nor the reasoning in the Boilermakers' Case suggested that a State Parliament was precluded generally from conferring the adjudicative authority of a State on an organ of the State other than its courts. Within the scope of the general legislative authority of a State there can be no doubt that s 107 of the Constitution preserved the power of State Parliaments in that regard. But the question is whether Ch III withdrew from State Parliaments the power to confer adjudicative authority in respect of the matters listed in ss 75 and 76 upon agencies of the State other than its courts. That question cannot be answered in the negative by denying the now well‑established distinction between courts and administrative tribunals in relation to the federal Judicature, or by asserting that s 77(ii) of the Constitution is to be understood as if, in referring to the courts of a State, it is also referring to agencies of the executive government or other agencies that are not recognisable as courts as that term is used in Ch III of the Constitution.[66]See Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45.Conclusion Sections 28(2)(a) and (c), 29(1) and 32 of the NCAT Act are invalid to the extent that they purport to confer jurisdiction upon NCAT in relation to the matters between Mr Burns, and Ms Corbett and Mr Gaynor. Pursuant to s 31 of the Interpretation Act 1987 (NSW) they may be read down to avoid that conclusion so that they do not confer jurisdiction upon NCAT where the complainant and the respondent to the complaint are "residents of different States" within the meaning of s 75(iv) of the Constitution.Orders The appeals to this Court should be dismissed. In Matter Nos S183 and S185 of 2017, the appellant should pay the first respondent's costs. In Matter Nos S186, S187 and S188 of 2017, the appellant should pay the second respondent's costs. The question of constitutional principle and its answer The High Court has in the past made plain that, except with respect to the subject matters identified in ss 75 and 76 of the Constitution, a State Parliament can confer State judicial power on a State tribunal that is not a court of that State[67]. The ultimate question now for determination is whether the exception is warranted.[67]K-Generation Pty Ltd v Liquor LicensingCourt (2009) 237 CLR 501 at 544 [153]; [2009] HCA 4.